The EEA Competition Act of 2004

Act of 5 March 2004 No. 11 concerning implementation and enforcement of the competition rules of the EEA Agreement, etc. (including amendments in Act of 17 December 2004 No. 100).

Section 1 – Enforcement of the competition rules of the EEA Agreement

The EFTA Surveillance Authority and the EFTA Court enforce the competition rules of the EEA Agreement in accordance with Sections 2 to 5 and 9 of this Act and regulations adopted pursuant to those Sections. Norwegian competition authorities and courts enforce Articles 53 and 54 of the EEA Agreement in accordance with Sections 6 to 9 of this Act.

Section 2 – Duty to provide information and exemptions from the duty to maintain confidentiality

Any individual or undertaking must provide the EFTA Surveillance Authority and the EFTA Court with any information they may require under the EEA Agreement, the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, or regulations adopted pursuant to Section 5, notwithstanding any duty to maintain confidentiality. A deadline may be imposed for the provision of such information.

The Competition Authority may, at the request of the EFTA Surveillance Authority, require similar information.

Regardless of any pre-existing duty to maintain confidentiality, and within the framework established by the EEA Agreement, any individual or undertaking may respond to requests for information from the European Commission and the Court of Justice of the European Communities.

Notwithstanding legal requirements to maintain confidentiality, Norwegian public authorities may provide the EFTA Surveillance Authority and the European Commission with any information necessary to enforce the competition rules of the EEA Agreement.

Section 3 – Inspections by the EFTA Surveillance Authority

Sections 24 and 25 of the Competition Act shall apply to inspections conducted by the EFTA Surveillance Authority, or by the Competition Authority at the request of the EFTA Surveillance Authority in accordance with regulations adopted pursuant to Section 5.

When an application for authorisation to secure evidence is brought before the court under Section 25, second paragraph of the Competition Act, the right of the court to review the application is governed by the rules set out in paragraphs three through seven.

When reviewing an application for authorisation to secure evidence that would require access to premises, land, and means of transport of undertakings or associations of undertakings, the court shall control that the decision by the EFTA Surveillance Authority is authentic and that the coercive measures envisaged are neither arbitrary nor excessive having regard to the subject matter of the inspection.

In the case of an application for authorisation to secure evidence in relation to a suspicion of infringement of Article 53 or Article 54 of the EEA Agreement, in its control of the proportionality of the coercive measures, the court may ask the EFTA Surveillance Authority, directly or through the Competition Authority, for more detailed explanations, in particular on the grounds the EFTA Surveillance Authority has for suspecting infringement of Article 53 or Article 54 of the EEA Agreement, as well as on the seriousness of the suspected infringement and on the nature of the involvement of the undertaking concerned.

In relation to a suspicion of infringement of Article 53 or Article 54 of the EEA Agreement, when reviewing an application for authorisation to secure evidence located at premises, land, and means of transport other than those set forth in the third paragraph, including private homes, the court shall control that the decision by the EFTA Surveillance Authority is authentic and that the coercive measures envisaged are neither arbitrary nor excessive having regard in particular to the seriousness of the suspected infringement, to the importance of the evidence sought, to the involvement of the undertaking concerned and to the reasonable likelihood that business books and records relating to the subject matter of the inspection are kept in the premises for which the authorisation is requested. The court may ask the EFTA Surveillance Authority, directly or through the Competition Authority, for more detailed explanations on those elements which are necessary to allow its control of the proportionality of the coercive measures envisaged.

When reviewing an application for authorisation to secure evidence pursuant to the provisions on merger control of the EEA Agreement, in its control of the proportionality of the coercive measures, the court may ask the EFTA Surveillance Authority, directly or through the Competition Authority, for more detailed explanations on the subject matter of the inspection.

Pursuant to paragraphs three through six however, the court may not call into question the necessity for the inspection nor demand that it be provided with the information in the EFTA Surveillance Authority's file. The lawfulness of the decision by the EFTA Surveillance Authority shall be subject to review only by the EFTA Court.

The EFTA Surveillance Authority and the European Commission have the right to be present at and participate in inspections conducted by the Competition Authority within the framework of the EEA Agreement.

The Competition Authority and the European Commission have the right to be present and participate in inspections conducted by the EFTA Surveillance Authority within the framework set forth in the EEA Agreement.

Section 4 – Fines and periodic penalty payments

The EFTA Surveillance Authority and the EFTA Court may impose fines on undertakings or associations of undertakings for the intentional or negligent infringement of: Articles 53, 54, or 57 of the EEA Agreement; the provisions of Annex XIV of the EEA Agreement; the provisions of Protocol 4 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice; and decisions made pursuant to the above provisions.

The authorities referred to in the first paragraph, may also determine periodic penalty payments related to implementation of decisions made pursuant to the provisions of the first paragraph.

Section 5 – Regulations

The King may issue regulations on the implementation and enforcement of the competition rules of the EEA Agreement and the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice.

Section 6 – The enforcement of Articles 53 and 54 of the EEA Agreement by Norwegian competition authorities

Subject to the limitations of the EEA Agreement, the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, and regulations adopted pursuant to Section 5, Norwegian competition authorities shall monitor compliance with Articles 53 and 54 of the EEA Agreement. Sections 12, 22, and 24 to 31 of the Competition Act apply similarly.

When the competition authorities rule on agreements, decisions or practices under Article 53 or Article 54 of the EEA Agreement which are already the subject of a decision by the EFTA Surveillance Authority, they cannot take decisions which would run counter to the decision adopted by the EFTA Surveillance Authority.

The competition authorities may decide that block exemptions pursuant to Article 53(3) of the EEA Agreement shall not apply to certain undertakings, as determined by the EEA Agreement, the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, and regulations adopted pursuant to Section 5.

If the competition authorities deem that a case should be brought before a surveillance authority, that case shall be submitted to the EFTA Surveillance Authority. In such instances, the provisions of the Public Administration Act on the handling of individual cases do not apply.

Where the competition authorities or courts apply Norwegian competition legislation to agreements, decisions by associations of undertakings or concerted practices within the meaning of Article 53(1) of the EEA Agreement which may affect trade between the EEA States within the meaning of that provision, they shall also apply Article 53 of the EEA Agreement to such agreements, decisions or concerted practices. Where the competition authorities or courts apply Norwegian competition legislation to any abuse prohibited by Article 54 of the EEA Agreement, they shall also apply Article 54 of the EEA Agreement.

The application of Norwegian competition legislation may not lead to the prohibition of agreements, decisions by associations of undertakings or concerted practices which may affect trade between the EEA States but which do not restrict competition within the meaning of Article 53(1) of the EEA Agreement, or which fulfil the conditions of Article 53(3) of the EEA Agreement or which are covered by a block exemption under Article 53(3) of the EEA Agreement. The competition authorities shall not under this Act be precluded from applying stricter Norwegian legislation which prohibits or sanctions unilateral conduct engaged in by undertakings.

Without prejudice to general principles and other provisions of EEA law, the first and second paragraphs do not apply when the competition authorities and the courts apply Norwegian merger control legislation, nor do they preclude the application of provisions in legislation that predominantly pursue an objective different from that pursued by Articles 53 and 54 of the EEA Agreement.

Section 7a Transfer of cases concerning concentrations to the European CommissionThe Competition Authority may transfer the handling of a case concerning a concentration in accordance with the rules of Protocol 24 of the EEA Agreement.

Section 8 Decisions of the Courts pursuant to Articles 53 and 54 of the EEA AgreementWhen the courts rule on agreements, decisions or practices under Article 53 or Article 54 of the EEA Agreement which are already the subject of a decision by the EFTA Surveillance Authority, they cannot take decisions running counter to the decision adopted by the EFTA Surveillance Authority. They must also avoid giving decisions which would conflict with a decision contemplated by the EFTA Surveillance Authority in proceedings it has initiated. To that effect, the court may assess whether it is necessary to stay its proceedings. This obligation is without prejudice to the rights and obligations under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice.

Section 9 – Right to submit observations to the courts

The Competition Authority, acting on its own initiative, may submit written observations to the courts on issues relating to the application of Article 53 or Article 54 of the EEA Agreement. With the permission of the court in question, it may also submit oral observations.

Where the coherent application of Article 53 or Article 54 of the EEA Agreement so requires, the EFTA Surveillance Authority, acting on its own initiative, may submit written observations to the courts. With the permission of the court in question, it may also make oral observations.

For the purpose of the preparation of their observations only, the Competition Authority and the EFTA Surveillance Authority may request the relevant court to transmit or ensure the transmission to them of any documents necessary for the assessment of the case.

Section 10 – Entry into force

This Act enters into force from the date decided by the King.

From the same time the Act of 27 November 1992 No. 110 on Competition Rules in the EEA Agreement, is repealed.

Section 11 – Transitional provisions

Administrative fines and criminal sanctions pursuant to this Act only apply to infringements committed after its entry into force.

Regulations, rules and directives pursuant to the Act of 27 November 1992 No. 110 on Competition Rules in the EEA Agreement, still apply to the extent that they are relevant, until the King repeals or amends them pursuant to this Act or by special provision.

Section 12 – Amendments to other Acts

When this Act enters into force the following amendments shall be made in other Acts: